Psystar Announces Program for Third-Party PC Manufacturers to Enable Snow Leopard Installation

[sneezymarble]

Right, the term crime though does have common vernacular meaning along with its legal twin. But it doesn’t really matter because whatever we call it, it still is a civil issue between two parties

I guess I'm just stating all of this because a big part of my interest was whether or not a crime is committed (in the strict legal sense) when, say, somebody installs OSX on a non-Apple computer. The answer, so far as I can tell, is probably not. But, of course, that isn't to say that there hasn't been (1) breach of contract, and (2) copyright infringement. It's just to say that even if there has been both of those things, it's unlikely that a crime has been committed. That's really the sum and substance of what I wanted to get out of this discussion.

One thing that hasn't helped matters in this case is that organizations like the RIAA or MPAA use legal language in ambiguous ways. For example, the MPAA website says the following with respect to illegally downloading movies:

...This means you're not only in possession of stolen goods...

What's implied here is that an illegal download is theft. But, if I'm understanding things right, that's just not true at all. Theft is a crime; period, full stop. An illegal download is an occurrence of copyright infringement; no question about that. But that doesn't entail that illegally downloading a file is a crime. So, it's misleading to claim that being in possession of an illegal download (presumably by downloading it) is theft, because theft is a crime, but copyright infringement may not be.

While it is certainly right to call all illegal file downloaders copyright infringers (pirates) it isn't correct to call all illegal file downloaders criminals. But, the material circulated by the RIAA and MPAA pretty much does just that. Certainly some downloaders are criminal copyright infringers, but that's a different claim.

So, the mixed up use of terms like "crime" is sort of perpetuated by the industries with an interest in preventing the behaviors they sometimes mistakenly denote with the word "crime". In a way I don't blame them. I'm merely pointing out a possible source of confusion in the matter. I'm not saying anything more like whether or not the RIAA or MPAA ought to correct or disambiguate their usage. Maybe they should, maybe they shouldn't; I'm just not saying anything about that.

All emphasis mine. Psystar is breaking the EULA at least three times if you count the ROM, enabling others to install it, and installing OS X itself seperately. After 'losing' their financial records of all purchases of Mac OS X, it's truly a wonder that they are still in business.

I'm not really sure how the Psystar systems work. I haven't used one and don't ever intend to buy one. However, assuming that OSX is fully installed on the machine, that is to say that the SLA has been clicked through, then it does seem to me that Psystar has committed a crime.

For this to be the case it has to be assumed that violating a SLA or EULA revokes the use of the software. So, after clicking through the SLA on non-Apple hardware and installing the OS, the license to use the OS is revoked. Any use of the OS after that is unauthorized and the installed copy of the OS is the result of copyright infringement–it's an unauthorized copy.

The bit that turns this act of copyright infringement into criminal copyright infringement is that the system (with the infringing copy installed on it) is sold so that the copy is used for financial gain.

So, whereas a Hackintosh user is probably committing copyright infringement, Psystar is probably committing criminal copyright infringement. Although, the matter of any SLA or EULA term violation entailing copyright infringement is a controversial one apparently.

 

[charlituna]

Ibut unless u didn't notice apple hasn't exactly been able to prove that hat psystar is doing is in violation of the Eula.

Actually they don't have to prove it. the violation is blantantly obvious. as is, in Apple's mind, the copyright and trademark violations. which is why they filed a lawsuit (which is the way you shut someone down)

 

[Buzz Bumble]

If you are car manufacturer selling a brand new vehicle under warranty and you are placing shiny new BMW logos on the car and selling them as a "BMW" model then you are screwed, as I said in the original post, if you sell "a" car as in singular with a BMW logo on it but make no claim as to it being an original BMW and describe it either as the original brand/make/model customized or similar then you are fine.

Bzzzt. That answer is incorrect!

You're not "fine" at all. You're still breaking the same laws as the manufacturer is ... the fact that BMW will probably turn a blind eye to a single car simply because it's not worth the time and money doesn't make it any more legal, legitimate, sensible, or morally correct.

And for the Bonus Question, what is BMW's corporate colour?

 

[petedskier]

I am going to discuss some aspects of what I have learned about "law" and our use of the term. I am choosing this post for a check list as much as contradicting the poster.

I'm not really sure how the Psystar systems work. I haven't used one and don't ever intend to buy one. However, assuming that OSX is fully installed on the machine, that is to say that the SLA has been clicked through, then it does seem to me that Psystar has committed a crime.

As I have learned, there are a number of areas in which the term law is used, e.g., federal law, state law, constitutional law, and criminal law. As someone has already pointed out, criminal law is the one for which a legal body may impose a sanction of incarceration against a person. Not all law is criminal law. The constitution of the US and many of the statues of the US do not refer to criminal law. Violations do not result in incarceration of an individual. If a state violated a provision of the constitution, the state would not be subject to incarceration. In this case, the word crime need not refer to a violation of criminal law as in, "isn't it a crime that he wore plaid shorts to church?"

For this to be the case it has to be assumed that violating a SLA or EULA revokes the use of the software. So, after clicking through the SLA on non-Apple hardware and installing the OS, the license to use the OS is revoked. Any use of the OS after that is unauthorized and the installed copy of the OS is the result of copyright infringement–it's an unauthorized copy.

While Apple has the prerogative to write a SLA or EULA for the use of their software that favors Apple computer, not all provisions of a licensing agreement are necessarily binding. For example, ski resorts place an agreement on lift tickets that require you to give up your right to sue the ski resort in the case of an accident, even if that accident was the result of negligence on the part of the resort. If a snowmobile plowed into a beginner ski class and injured a skier, that skier could still sue the ski resort and challenge the agreement that was forced upon the skier upon purchasing a lift ticket.

While anyone that violates Apple's SLA may be considered by Apple to have made an unauthorized copy, the court case of Apple v Psystar is going to establish whether Apple can assert that right.

The bit that turns this act of copyright infringement into criminal copyright infringement is that the system (with the infringing copy installed on it) is sold so that the copy is used for financial gain.

I am unfamiliar with this concept of criminal law. I should be surprised that if Psystar purchased OS X and re-sold it to its customers at a profit that that sale would be considered a crime. This is the common practice of all successful businesses.

So, whereas a Hackintosh user is probably committing copyright infringement, Psystar is probably committing criminal copyright infringement. Although, the matter of any SLA or EULA term violation entailing copyright infringement is a controversial one apparently.

As written, if Psystar is a corporation, then it would not be capable of a criminal offense. Individuals in Psystar could commit criminal acts. However, I am not aware of any criminal aspects related to copyrights.

Finally, I am not a lawyer, so my opinions are simply that, opinions.

 

[walter0515]

To know more details click here...

click here

 

[drsmithy]

Apple is a threat to the pc industry;therefore MS's OS: Windows.

Apple is not a threat to the "PC Industry". They have neither the manufacturing capacity nor the interest in the market to be a significant player there.

The main business method of big PC vendors (HP, Dell, etc) is extensive flexibility and razor-thin margins. Pretty much the exact opposite of Apple.

The only way Apple would ever be a serious threat to Microsoft is if it licensed OS X for clones, and started behaving like a PC manufacturer. That's unlikely to happen, ever, and certainly won't so long as The Steve has any influence.

 

[drsmithy]

All Apple needs to do is create a $5 custom chip that does not much, but is totally integral to how the OS controls hardware on the motherboard. This would effectively stop cloning, and Hackintoshes as well. I suspect Apple secretly likes Hackintoshes because it promotes MacOS, and most implementations are too fiddly to bother with.

Pretty much. Apple's problem is that Psystar is making it too easy to install OS X on a regular PC, not that Hackintoshes actually exist.

 

[sneezymarble]

As I have learned, there are a number of areas in which the term law is used, e.g., federal law, state law, constitutional law, and criminal law. As someone has already pointed out, criminal law is the one for which a legal body may impose a sanction of incarceration against a person. Not all law is criminal law. The constitution of the US and many of the statues of the US do not refer to criminal law. Violations do not result in incarceration of an individual. If a state violated a provision of the constitution, the state would not be subject to incarceration. In this case, the word crime need not refer to a violation of criminal law as in, "isn't it a crime that he wore plaid shorts to church?"

I don't doubt that there are all sorts of meanings behind the word "crime". I'm simply using a specific legal meaning.

While anyone that violates Apple's SLA may be considered by Apple to have made an unauthorized copy, the court case of Apple v Psystar is going to establish whether Apple can assert that right.

You're right. My argument that Psystar is committing a crime turns on whether a particular term in their SLA is upheld. I simply assumed, for the sake of argument, that it was. If the non-Apple-term of Apple's SLA is thrown out, then things will look differently.

I am unfamiliar with this concept of criminal law. I should be surprised that if Psystar purchased OS X and re-sold it to its customers at a profit that that sale would be considered a crime. This is the common practice of all successful businesses.

Purchasing OSX and re-selling it to somebody is not a crime. What would make Psystars actions criminal is if a copy of OSX that they give to their customers is the result of copyright infringement. If it's true that violating any term of a SLA or EULA revokes the license to that copy, and that thereafter any use of that copy constitutes use of an unauthorized copy, and that use of an unauthorized copy is copyright infringement (see the recent MDY v Blizzard for support for this line of thinking), then if, per § 506, they sell that copy for financial gain, they have committed criminal infringement. I very well could be wrong about this line, I'm just throwing it out there.

§ 506. Criminal offenses

(a) Criminal Infringement. —

(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —

(A) for purposes of commercial advantage or private financial gain

Also, as it stands now, corporations can commit crimes. This is controversial in America and just about everywhere else where it has, in the past, been established that corporations have personhood in the legal sense. Sounds crazy, I know, but in the US a corporation is a person (in the legally relevant sense).

 

[drsmithy]

Violating Apple's SLA invalidates the license. Therefore any use of the software is unauthorized, provided that the license and its provisions are legal.

Only if the terms of the EULA are, themselves, enforceable. An EULA might say, for example, that you are not allowed to on-sell the software, or use it if purchased from anyone except the original developer - but these would be trumped by the First Sale Doctrine.

For a more ridiculous example, an EULA might say you can only use the software if you have red underwear on and are facing due West. Again, this is unenforceable and, therefore, not following that term of the EULA does not invalidate your license to use.


The EULA issue is whether Apple's tying of OS X to their hardware via an EULA is enforceable. If it is, Psystar is screwed. If it isn't, they're doing nothing wrong. It is in no way a foregone conclusion.

 

[drsmithy]

It is not a question of benefiting the public. If Psystar is reverse engineering OSx code to make it work on their own hardware it's exactly the same kind of violation as selling a machine that will make copies of protected movie DVDs. Companies that have done so have lost in court every time.

The DMCA says you can't reverse engineer to defeat technical measures used to prevent unlawful use.

This angle would also hinge on whether or not the EULA terms are enforceable (and, therefore, whether violating them is "unlawful use").

 

[drsmithy]

Why in hell would you do that

Perhaps he thinks if they win, Apple might respond by dropping some of their prices and/or addressing some of the gaping holes in their hardware lineup ?

 

[drsmithy]

I wonder at what point Apple will just say "F*ck it!" and start an OS activation mechanism based on hardware serial #s? While competition is a good thing, this could simply push things a little too far in the wrong direction.

There is no need for Apple to do this. They don't need to use serial numbers, because they have hardware dongles. Microsoft (and most other software vendors) do not have this luxury, and therefore need to rely on the more intrusive, and less reliable, path of serial numbers and "activation".

 

[drsmithy]

There is Apple specific hardware in all Macs. The hackintosh boot loaders get around this by emulating the Mac hardware.

As far as I know, all the bootloaders are doing is presenting an EFI BIOS, not "emulating" anything Apple-specific.

 

[sneezymarble]

As far as I know, all the bootloaders are doing is presenting an EFI BIOS, not "emulating" anything Apple-specific.

I'm a little foggy on exactly how the current bootloaders work. I'd like to know more about it. Anyone? My surface level understanding is that bootloaders like the Chameleon bootloader don't use any code that infringes upon any of Apple's copyrights. Am I wrong?

Edit: For those interested, here's an interesting article on how Apple ties OSX to hardware. It looks to me like you can have a bootloader that doesn't involve any copyright infringement or DMCA violations that will enable the booting of Snow Leopard.

I really have no clue how Psystar configures their systems, but here's a possible way for them to sidestep any copyright issues.

(1) Configure a computer system with OSX compatible hardware.
(2) Purchase a copy of Snow Leopard.
(3) As the owner of that copy (not the software), make a backup image of the Snow Leopard disc and save it to a partition of the hard dive in the computer configured in step (1).
(3a) Note that up to this point no SLA or EULA has been confronted and copyright law allows for at least one backup copy.
(4) Create another partition on the hard drive of the computer configured in step (1).
(5) Install a bootloader (per my comments above, assume this bootloader doesn't violate terms of the DMCA or infringe upon any Apple copyrights)
(6) Sell the computer from step (1) accompanied with the original store bought copy of Snow Leopard (the backup copy and the store bought copy must be sold and transferred together.)

The customer turns on the computer from step (1) and is confronted with options from the bootloader. The bootloader facilitates the booting of the backup image of Snow Leopard. Initiating that sequence of events is something the customer does or does not do. When the Snow Leopard installation disc image boots up the SLA is finally presented to somebody–the customer. So far there have been no breaches of contract (SLA term violations) or copyright infringements. If the customer clicks through the SLA and installs and uses Snow Leopard, then they are in breach of contract and (assuming things are as the MDY v Blizzard case says they are) they are also committing copyright infringement. However, in this case, unlike a case where Psystar employees install Snow Leopard on the computers they sale, no criminal copyright infringement has taken place.

 

[gnasher729]

For a more ridiculous example, an EULA might say you can only use the software if you have red underwear on and are facing due West. Again, this is unenforceable and, therefore, not following that term of the EULA does not invalidate your license to use.

Actually, I think this would be enforceable. It is of course ridiculous, and you wouldn't make any sales, but having red underwear or facing west is nothing that looks illegal to me.

 

[pdjudd]

Actually, I think this would be enforceable. It is of course ridiculous, and you wouldn't make any sales, but having red underwear or facing west is nothing that looks illegal to me.

Well its unenforceable in the sense that there is no practical way for Apple (or anyone for that matter) to ensure that you are in fact wearing red underwear or are truly facing west. No court is going to basis a EULA violation on those terms alone and basing the result on user honesty.

Yes the actions themselves are silly and legal in of themselves, but I doubt that you would get very far with them..

 

[flopticalcube]

There is no need for Apple to do this. They don't need to use serial numbers, because they have hardware dongles. Microsoft (and most other software vendors) do not have this luxury, and therefore need to rely on the more intrusive, and less reliable, path of serial numbers and "activation".

Well, that is why I said hardware serial #s. I don't think we would get to the point of using software serials as I don't think Apple is really concerned about people who own legitimate Macs not paying for OS updates. Its the losing out on hardware sales that really hurts Apple and it would be much easier to implement than the pain that MS puts everyone through with their activation nonsense (although still irritating).

 

[sneezymarble]

Actually, I think this would be enforceable. It is of course ridiculous, and you wouldn't make any sales, but having red underwear or facing west is nothing that looks illegal to me.

Practically speaking, I don't know that it'd affect sales. If the product was good, you'd probably just find that there are not a lot of red-underwear-wearing and west-facing users of the product.

 

[pdjudd]

Well, that is why I said hardware serial #s. I don't think we would get to the point of using software serials as I don't think Apple is really concerned about people who own legitimate Macs not paying for OS updates. Its the losing out on hardware sales that really hurts Apple and it would be much easier to implement than the pain that MS puts everyone through with their activation nonsense (although still irritating).

While it seems like an obvious answer there are a couple of problems:

1) It does nothing for products currently out in market OS wise.
2) It prevents reverse compatibility for future releases.

To compound number 2, Suppose Apple did implement a hardware solution - no current or Past Macs offer this so they would be left out of the dust for any OS upgrades (unless you wanted to wait years to implement it on the software side) Point is, upgrading older systems would be very difficult without knowing if your system was supported before hand. And even then there is no guarentee that this doesn't get bypassed

So you have the proposal of having hackintoshes for years until you can phase out the non hardware protected systems since new OS releases would naturally install OSX in a similar fashion, or you would have alot of angry people left out when they suddenly realize they can't upgrade when they bought a laptop X months before this hardware system was implemented.

I guess I don;t know how this system could be implemented without a lot of extra overhead one way or another and again, there is no guarantee that this will be unbeatable.

 

[flopticalcube]

No, it won't be easy and its bound to upset more than a few people. There is no foolproof way of doing anything. Even the tortuous MS activation system can be bypassed but making life difficult or forcing the reseller to do something that is clearly illegal and thus actionable would definitely slow the unlicensed clone market down. The more Psystar pushes into Apples profits, the bigger the response will be and, unfortunately, Apple users may end up taking some of the pain. I sure hope its won't get to that.

 

[pdjudd]

No, it won't be easy and its bound to upset more than a few people.

The ultimate problem is that its very hard to close the barn doors once they have been opened for as long as they have. Apple has long been known for imposing very few limitations and hurdles as they do - they leave the doors open knowing that a few cows will inevitably escape, but most stay in and behave. Closing the door is a very difficult sell unless you do it from the get go.

 

[flopticalcube]

Closing the door is a very difficult sell unless you do it from the get go.

Which then leads to why did Apple remove the TPM chip from the 2nd gen Intels onward? Perhaps its something they regret now.

 

[jbernie]

And finally,

Quote:
2. Permitted License Uses and Restrictions.
A. Single Use License. Subject to the terms and conditions of this License, unless you have purchased a Family Pack or Upgrade license for the Apple Software, you are granted a limited non-exclusive license to install, use and run one (1) copy of the Apple Software on a single Apple-branded computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-branded computer, or to enable others to do so.



All emphasis mine. Psystar is breaking the EULA at least three times if you count the ROM, enabling others to install it, and installing OS X itself seperately. After 'losing' their financial records of all purchases of Mac OS X, it's truly a wonder that they are still in business.

I wonder how enforcable the last portion is, given that the majority of hardware (not cases) Apple uses these days is mainstream components, about the only non standard component would be the EFI right? But even then it isn't an Apple only item. So if Psystar does something with the purpose of running a different OS and that same change enables you to run OSX then the courts might struggle to back Apple in this specific instance.

 

[jbernie]

Bzzzt. That answer is incorrect!

You're not "fine" at all. You're still breaking the same laws as the manufacturer is ... the fact that BMW will probably turn a blind eye to a single car simply because it's not worth the time and money doesn't make it any more legal, legitimate, sensible, or morally correct.

What law? Next thing we know I will be getting arrested for putting a BMW sticker on a car.

If you go to the scrap yard, buy the badge, you own the badge and I would assume you would own the car you are putting it on, there are no laws against doing such a thing even if you sell the car with said badge on it, the only laws that exist prevent other automakers from copying the logos/vehicle names such that it would confuse customers.

If it was so illegal you should be reporting all your fellow Kiwis and while you are at it, all the Aussies who rebadge their Holdens with Chevy badges.

 

[BaldiMac]

As far as I know, all the bootloaders are doing is presenting an EFI BIOS, not "emulating" anything Apple-specific.

OS X requires a decryption key embedded in the System Management Controller in order to run.